Filed 5/17/13 P. v. Romero CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

RICARDO LUCERO ROMERO,

Defendant and Appellant.

F065224

(Super. Ct. No. F11904707)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. James R. 

Oppliger and D. Tyler Tharpe, Judges.†

Gregory M. Chappel, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and 

Respondent.

-ooOoo-

 

* Before Wiseman, Acting P.J., Levy, J., and Gomes, J.

†

Judge Oppliger presided over appellant’s change of plea hearing. Judge Tharpe 

sentenced appellant.
2

FACTS AND PROCEEDINGS

Appellant, Ricardo Lucero Romero, was charged in an information filed on 

April 2, 2012, with assault with intent to commit rape (Pen. Code, § 220, count 1),1

forcible oral copulation (§ 288a, subd. (c)(2)(A), count 2), and two counts of sexual 

penetration of a minor 14 years of age or older (§ 289, subd. (a)(1)(C), counts 3 & 4). 

The information further alleged that appellant had two prior prison term enhancements 

(§ 667.5, subd. (b)). 

On May 17, 2012, appellant entered into a plea agreement in which he would 

admit counts 3 and 4, as well as the two prior prison term enhancements, in exchange for 

the dismissal of counts 1 and 2. Appellant would be subject to a maximum prison 

sentence of 22 years. Appellant executed and initialed a felony advisement, waiver of 

rights, and plea form indicating he would admit counts 3 and 4, as well as the two 

enhancements. Appellant acknowledged and waived his constitutional rights pursuant to 

Boykin/Tahl,

2

stated he understood the consequences of his plea, and agreed the police 

reports constituted a factual basis for his plea. 

Appellant also initialed a box stating: “I have had enough time to discuss my case 

and all possible defenses with my attorney.” Appellant’s trial counsel signed the form 

under the heading “ATTORNEY’S STATEMENT,” acknowledging that counsel 

reviewed the plea form with his client, explained his constitutional rights to appellant, 

answered all of appellant’s questions concerning the plea, discussed the facts of the case 

with appellant and the consequences of the plea, and reviewed the elements of the 

offenses and potential defenses. 

 

1 All statutory references are to the Penal Code.

2 Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122 

(Boykin/Tahl).
3

At the change of plea hearing, appellant verified to the trial court that he executed 

and initialed the plea form. The court explained to appellant the consequences of his 

plea, including his Boykin/Tahl rights which appellant waived in court. The parties 

stipulated that the police reports constituted the factual basis for the plea. Appellant pled 

no contest to counts 3 and 4 and admitted the two prior prison term enhancements. 

Pursuant to the plea agreement, the trial court granted the prosecutor’s motion to dismiss 

counts 1 and 2. 

On June 22, 2012, the trial court sentenced appellant in counts 3 and 4 to the upper 

term of ten years, to be served fully, separately, and consecutively pursuant to section 

667.6, subdivision (c). The court imposed two consecutive sentences of one year for 

each prior prison term enhancement for a total prison sentence of 22 years. The court 

imposed a restitution fine of $5,280 and granted total custody credits of 470 days.3 The 

court reserved the issue of victim restitution for later determination. 

Appellant did not obtain a certificate of probable cause. Appellate counsel has 

filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). 

 

3 The original abstract of judgment inaccurately indicated that appellant was 

sentenced pursuant to the three strikes law. It also inaccurately indicated by a checked 

box on the form that appellant’s consecutive sentence on count 4 was to be a consecutive, 

one-third term. Appellate counsel filed correspondence with the trial court seeking 

removal from the abstract of judgment of any reference to sentencing pursuant to the 

three strikes law. 

On November 15, 2012, this court filed an amended abstract of judgment with the 

reference to sentencing under the three strikes law omitted. The amended abstract of 

judgment, however, still has the inaccurate box checked indicating that appellant’s 

consecutive term on count 4 is one-third of the 10-year term imposed by the court. This 

is clerical error that can be corrected at any time. (People v. Mitchell (2001) 26 Cal.4th 

181, 185; In re Candelario (1970) 3 Cal.3d 702, 705.) Accordingly, we will remand to 

the trial court for the limited purpose of having the abstract of judgment again corrected 

to reflect that appellant’s sentence on count 4 is a consecutive full term sentence to his 

sentence on count 3.
4

FACTS

At 2:15 a.m. on August 14, 2011, 16-year-old Confidential Victim (CV), was 

walking with her friend, R.A., in the area of Fresno and Olive Streets in Fresno when 

appellant exited his vehicle at a gas station and tried talking to CV. CV and R.A. tried to 

ignore appellant and continued walking. Appellant followed the two girls, who crossed 

the street to avoid appellant. Appellant grabbed CV, put his hand over her mouth, and 

touched her anus and vagina through her clothing. 

R.A. called the police. CV bit appellant’s hand and tried to move onto a fence and 

yelled for help. Appellant grabbed CV and placed his penis into her mouth and moved 

her head back and forth. CV scratched appellant’s face with a fingernail. R.A. knocked 

on the door of a nearby house, pleading for help. CV asked for help from people at a 

nearby garage. Appellant assured the people that CV was just going crazy. Appellant 

got CV to the ground, put his hand down the back of her shorts inside her underwear, and 

stuck a finger in CV’s anus and another finger in her vagina and moved them back and 

forth for a few seconds. 

Two men walked up and told appellant to leave CV alone. CV got up and ran 

away to her father’s house. Appellant was detained by the men. When police arrived, 

they observed that appellant had scratches on his face. Police noted that CV’s lip was 

swollen and her face had scratches and red marks. Both of CV’s legs were scratched. 

CV was brought back to the scene and positively identified appellant as her assailant.

APPELLATE COURT REVIEW

Appellant’s appointed appellate counsel has filed an opening brief that 

summarizes the pertinent facts, raises no issues, and requests this court to review the 

record independently. (Wende, supra, 25 Cal.3d 436.) The opening brief also includes 

the declaration of appellate counsel indicating that appellant was advised he could file his 
5

own brief with this court. By letter on October 1, 2012, we invited appellant to submit 

additional briefing. 

Appellant replied with a letter complaining that the victim’s mother got to state at 

sentencing that the victim was not the same outgoing person she used to be, lived in 

constant fear, and was afraid to leave her house. Appellant claims his relatives were not 

allowed to speak at the hearing. Appellant asserts he never admitted anything about the 

offenses charged against him and he was misadvised by his attorney. Appellant denies 

waiving his rights and asserts that he was railroaded by his attorney and the prosecutor.

There is no indication that during the sentencing hearing appellant’s relatives 

attempted to speak on his behalf and were denied the chance to do so. The record clearly 

shows that appellant was well aware of his Boykin/Tahl rights and waived them both in 

the plea form and in open court after an advisement by the trial judge. Appellant’s 

counsel signed a statement that he advised appellant of his rights and potential defenses 

and appellant initialed a box in the plea form that he had consulted his attorney. As part 

of the plea bargain, two other felony sex offense charges that were also subject to

consecutive sentencing were dismissed. There is no evidence in the record that 

appellant’s trial representation was inadequate.4 

 

4 The defendant has the burden of proving ineffective assistance of trial counsel. To 

prevail on a claim of ineffective assistance of trial counsel, the defendant must establish 

not only deficient performance, which is performance below an objective standard of 

reasonableness, but also prejudice. A court must indulge a strong presumption that 

counsel’s conduct falls within the wide range of reasonable professional assistance. 

Tactical errors are generally not deemed reversible. Counsel’s decisionmaking is 

evaluated in the context of the available facts. To the extent the record fails to disclose 

why counsel acted or failed to act in the manner challenged, appellate courts will affirm 

the judgment unless counsel was asked for an explanation and failed to provide one, or, 

unless there simply could be no satisfactory explanation. Prejudice must be affirmatively 

proved. The record must affirmatively demonstrate a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been different. 

(People v. Maury (2003) 30 Cal.4th 342, 389.) Attorneys are not expected to engage in 
6

Appellant contends he did not admit any allegations. Appellant, however, pled no 

contest to counts 3 and 4 in open court and admitted them in the plea form. A guilty plea 

is, for most purposes, the legal equivalent of a jury’s guilty verdict. (People v. Valladoli

(1996) 13 Cal.4th 590, 601.) A guilty plea serves as a stipulation that the People need not 

introduce proof to support the accusation. The plea ipso facto supplies both evidence and 

verdict and is deemed to constitute an admission of every element of the charged offense. 

(People v. Alfaro (1986) 42 Cal.3d 627, 636 [overruled on another ground in People v. 

Guerrero (1988) 44 Cal.3d 343]; People v. Chadd (1981) 28 Cal.3d 739, 748.) 

A plea of nolo contendere (or no contest) is legally equivalent to a guilty plea and 

also constitutes an admission of every element of the offense pled. (People v. Warburton

(1970) 7 Cal.App.3d 815, 820-821.) We therefore reject appellant’s contention he was 

not guilty or that there was no evidence against him.

Finally, to the extent that appellant’s letter can be construed as a challenge to the 

validity of the plea agreement, he is barred from making such a challenge because he 

failed to obtain a certificate of probable cause. (People v. Panizzon (1996) 13 Cal.4th 68, 

77-79.) Defendants cannot set aside their pleas merely because they change their minds 

or have buyer’s remorse. (In re Vargas (2000) 83 Cal.App.4th 1125, 1143-1144; People 

v. Knight (1987) 194 Cal.App.3d 337, 344.)

After independent review of the record, we have concluded there are no 

reasonably arguable legal or factual issues.

 

tactics or to file motions which are futile. (Id. at p. 390; also see People v. Mendoza

(2000) 24 Cal.4th 130, 166.) We find no evidence in the record on appeal that defense 

counsel’s representation was ineffective.
7

DISPOSITION

The case is remanded to the trial court for the limited purpose to correct clerical 

error and amend the abstract of judgment to reflect the trial court’s order during 

sentencing that appellant’s sentences on counts 3 and 4 were to run fully, separately, and 

consecutively. The court shall forward the amended abstract of judgment to the 

appropriate authorities. The judgment is affirmed.